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[2012] ZAGPPHC 184
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Phetla v First Rand Bank (66632/2011) [2012] ZAGPPHC 184 (21 August 2012)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTSBLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH, PRETORIA)
CASE
NO: 66632/2011
DATE:
21 AUGUST 2012
In
the matter between:
NTSOPANE
ELIOT
PHETLA
.........................................................................
Applicant
and
FIRST
RAND
BANK
…....................................................................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
This matter came before me in the urgent court. The relief sought is
obscure.
The
contents of the founding affidavit are strange and worrisome. The
applicant seeks the following order:
1.
That the respondents and the sheriff of the North and South High
Court be ordered to unlock and to release the funds which have
been
blocked by the sheriff in the sum of R31 389.000.00 which have been
held in the FNB Account no: ….., Church Square
Branch
Pretoria, to the applicant's Account no: ... FNB, Benoni Branch;
2.
That the respondent or the sheriff or any person acting under his
authority, command, consent and /or instructions be interdicted
and
restrained from disturbing or stopping and/or blocking the applicant
from withdrawing the funds, whose court file under the
case
no:24033/11 the directives had been given for its closure;
3.
That upon the respondent and /or the sheriff having unlocked the
funds and having guaranteed that it will not be stopped and
disturbed
again, the funds be effectively and mandatorily withdrawn at any
branch, by first entrance inside First National Bank,
in Pretoria or
Johannesburg forthwith;
4.
That the sheriff be ordered and duly authorised to collect and seize
the truck M.A.N white in colour and the mini truck at any
pound, two
sets of keys in possession of the sheriff under ref no: Nephe/3233
and hand them over to the applicant forthwith;
5.
The respondent to pay the cost of this application in the event that
this matter is opposed;
6.
Further and/or alternative relief.
[2]
The applicant's complaint throughout the application seems to be that
the respondent and the sheriff have continuously 'disturbed'
the
withdrawal of funds from his account mentioned in para 2 above, by
apparently 'locking' or 'freezing' it. The papers are not
paginated,
nor indexed. The sheriff, against whom relief is sought, has not been
joined as a party to the proceedings. Under normal
circumstances I
would have struck the matter off the roll for all these, and lack of
urgency. However there are disturbing features
of the application,
which I think, deserve mention and further action.
[3]
Because the relief sought by the applicant is obscure, I would, to a
great extent, quote liberally from the applicant's founding
affidavit, rather than attempt to summarise its contents. The
applicant states in his founding affidavit that he obtained summary
judgment in this court against Wesbank (a division of the respondent)
for R11 000 950 pursuant to an "insurance claim".
The
applicant states that terms of the summary judgment were as follows:
'(a)
Payment of risk benefits and insurance cover over the white M.A.N
Truck was confirmed;
(b)
The sheriff of the high court, Mr Maartens was authorised to attach,
seize and
hand
over the M.A.N Truck to me;
(c)
The sheriff of high court was also authorised to attach the account
held at FNB Bank City, Simmonds Street, Johannesburg;
(d)
The West Bank Ltd was ordered to pay further costs as well as R23000
000.00 and also R1 480 000.00 to the applicant;
(e)
Payment of charges of R1 350 000.00 and interest at the rate of
15.5%'
[4]
I interpose here to mention that no court order was attached to the
papers to sustain the allegation that summary judgment was
indeed
granted by this court. Pursuant to the supposed summary judgment, the
applicant alleges that Wesbank deposited the amount
of the alleged
judgment debt into his FNB bank account No. …... As proof of
the alleged deposit, the applicant refers to
annexure "NEP5".
One would, ordinarily, expect such an annexure to be proof of deposit
in the form of an electronic fund
transmission (EFT). It is not.
Instead, it is a very unusual document. It is a purported document of
this court, bearing the names
of the parties under case no. 24033/11,
being the same parties in the present application. It bears this
court's date stamp, and
was purportedly signed on behalf of
'Financial Committee: Reserve Bank (Marius) and FNB (Christie)'. It
is titled:
'Affidavit
in terms of section 4 of the Contingency Fees and Interest Act, No 66
of 1997 (the Act) read together with the North
Gauteng High Court
Practice Directive of 25th July 2011. This is proof of payment in the
amount of R23 000 000-00 (Twenty Three
Million Rand) into account
No:......, First National Bank, Benoni Branchand it is withdrawable
on Monday, 15 August 2011, at 08h30
with Mrs Christine Mckenzie'
(emphasis
added)
[5]
In paragraphs 11 and 12 of his founding affidavit, the applicant
states the following:
'11.
I submit that the Corporative Executive of the respondent and the
sheriff of the above Court made it difficult for me to access
and
withdraw the funds in that after having made an undertaking that the
funds would be in my account, they did not, (sic) being
my account
no. 62312015135, FNB Bank Benoni Branch. I annexed thereto a copy of
the sheriff's undertaking marked as annexure 'NEP6',
the contents
thereof are to be read as specifically incorporated.
12.
I further state that in truth and actual fact, the funds are still
held at the respondent's account no. 6224483110, FNB Bank,
Church
Square Branch, Pretoria, which funds on numerous occasions I tried to
access and withdraw but without success. I annexed
thereto a copy of
an affidavit deposed by the sheriff of the above court Mr Maartens
marked as annexure 'NEP7', confirming that
the funds are still held
at the said respondent's account, the contents thereof are to be read
as specifically incorporated."
[6]
Annexure "NEP6" referred to in paragraph 11 of the founding
affidavit, is supposedly an undertaking by the sheriff.
Again it is
convenient to quote in full the contents of the affidavit:
'1.
I have been involved in this matter as from 28 April 2011, when I
served combined summons on the defendant, and have also collected
sums of R11 950 000.00 which today is R27 388 000.00 plus, R4 101
000.00 in costs and charges. The total sum is R31 389 000.00.
2.
I have been mandated by the Court to collect trucks and funds, and
have also blocked the funds at Reserved Bank and FNB head
office.
3.
I have blocked the funds so that none other than my person (sic) may
not successfully release them (sic).
4.
I have therefore on the 14th of September 2011, successfully unlocked
the funds and that cause of processes and verification
of everything
at FNB (sic) the funds are ready but I recommend that the funds be
withdrawn effectively after the 15th September
2011 and that be
effectively and mandatorily withdrawn on the 16th September 2011 at
any branch, by first entrance inside FNB Bank
and that I have no
control over this process anymore and that I guarantee that it will
not be stopped and disturbed again. And
that I will go, if need (sic)
be, and as per consent of plaintiff, to the Bank with plaintiff at
any branch, Pretoria or Johannesburg.
5.
I have also served application for summary judgment on the Wesbank
Ltd and
charges them R1, 350 000.00.
6.
I have been mandated to collect and deliver two trucks as Matlala
Street, Duduza, Nigel and that this delivery will take place
on
Friday, 16th September 2011 at 15h30 and that keys will be handed
over to Mr Phetla at same address in the presence of Advocate
Dikotla.
7.
I have received that payment of R3 650.00 and R6 100.00 but I
recommend that my payment be R41 000.00 and I can still charge
R78
000.00 on top of R41 000.00.
8.
The mini truck has been collected as a result of fraudulent
transactions between Leon Mange and Wesbank Ltd, Mrs Lazereen.
9.
I have blocked also the transactions done by Mr Neville Melville,
because my mandate given by the court was not terminated.
10.
I am sorry for all the inconveniences caused by me disturbing the
plaintiff for a period of five months.
[7]
Annexure "NEP7" is also purportedly a court document,
bearing this court's date stamp, also allegedly signed by the
sheriff
Mr JG Maartens. It reads:
"1.
Affidavit in terms of section 4 of the contingency fees and interest
Act, no. 66 of 1997 (the Act) read together with the
North Gauteng
High Court Practice Directive of 25th July 2011. This is proof of
freeze (sic) in the amount of R23 000 000.00 (twenty
three million
rand) and transferred into account no: ….., First National
Bank, from Reserve Bank Pretoria, the frozen account
number is: …....
being a suspensive account at Reserve Bank, and the suspensive
account is from First National Bank, Church
Square is:......... The
above confirms cancellation of the process which was done by Mrs
Marius of Reserve Bank and also by Mrs
McKenzie of first National
Bank, Church square. I have also stopped the transaction regarding
the cheque in the sum of R1 480 000.00
(one million four hundred and
eight thousand rand) which will be collectable from me, Mr J G
Maartens of the High Court sheriff
as empowered to do so by the
Sheriffs Act of 1996, on the 18th of August 2011 at 11h30 at the same
time of collection of the truck
at Benoni pound. The freesing (sic)
transaction commenced at 10h00 am and the (sic) lasted at 12h00 pm of
the 17th of August 2011.
2.
I also declare under oath that M.A.N, truck 480, white in colour, was
collected from Department of Justice pound at Union Building,
West
Gate, from Mr Micheal Cloete and has been stored at Benoni pound.
3.
The whole freesing transactions (sic) shall lapse after full 8
(eight) hours and that Mr N E Phetla will be in a position to
withdraw at any FNB Branch of his choice after 8 (eight) hours.
4.
I as sheriff of the High Court being duly instructed to freeze the
money at Reserve Bank and also at FNB, Church Square, do hereby
undertake that I am allowed to accompany Mr N E Phetla to collect his
truck at Benoni pound on the 18th of August 2011 at 11h30
am. This
has been confirmed with Judge De Vos and Judge Claassen."
(emphasis
added)
[8]
In paragraph 17 of the founding affidavit the applicant states the
following:
"I
respectfully submit that I had travelled together with my children to
and from Benoni, Gauteng Province, for the purpose
of withdrawing the
funds and to be handed over matter (sic) as per directives dated
19/09/11, marked as annexure 'NEP 8', the contents
thereof at ad para
1.2 and 1.4 are to be read as specifically incorporated".
[9]
Annexure 'NEP8' referred to above is a purported court document
titled 'Notice to comply with High Court Uniform Rules'. The
document
was supposedly served on both the Judge President and Deputy Judge
President of this Division, as well as the Chief Justice
of the
Republic. The Chief Justice has purportedly acknowledged receipt
thereof by appending his signature to the document. The
document
reads as follows:
'1.1
That personal appearance before a penal of judges is hereby extended
of Tuesday, 20th September 2011 at 14h30;
1.2
That closure to the matter be and shall be Tuesday 14h30;
1.3That
the sheriff be arrested and remain custody until further appearance;
1.4
That the authorised (sic) Judges Van Der Merwe, Claassen and Webster,
move to Benoni to collect trucks keys and on completion
of
registration at
Benoni
and Nigel Police Stations they must hand over the keys to Mr N E
Phetla;
1.5
Mr Maartens must sign the reconciled bank statements so that Mr N E
Phetla may proceed to his FNB funds withdrawal;
1.6
That Super Group having connived secretly with sheriff Maartens must
receive a copy of this letter;
1.7
That the directive dated the 16th of September 2011 is hereby
extended to the 20th of September 2011 at 14h30\
(emphasis
added)
[10]
In paragraph 20 of the founding affidavit the applicant states the
following:
'I
state that prior to the above incident, I had been subpoenaed or
directives have been given as per annexure 'NEP9' to appear
before
panel of judges at ad par 3 and had signed documents for the release
of the funds, but as at date (sic) I have not been
in possession of
my funds due to conduct of the Respondent and the Sheriff as per his
undertaking that same will be made available."
[11]
Annexure 'NEP9' referred to above is also purportedly a court
document titled 'Directive in terms of High court Rules'. It
was
purportedly received and signed by the following people: Chief
Justice Mogoeng Mogoeng; Ngoepe JP and Van der Merwe DJP), a
'Katherine' of the Pretoria Society of Advocates and Advocate
Dikotla. It reads:
'1.
Be pleased to take notice that is hereby directed by Judge President
Ngoepe, Deputy Judge President Van der Merwe and (Judge)
Webster that
as a result of findings in this matter that funds in the sum of R27
388 000.00, have been in the FNB account and has
been disturbed by
sheriff Maartens, but he has done everything and that he undertakes
that the funds are available for withdrawal
hereby on the 16th
September 2011 at any FNB branch, and the truck will be delivered
also on the 16th of September at 15h00 to
the address given as per
High Court Rules.
2.
The sheriff also given to us bundles of documents, purportedly proof
of all transactions he has been doing, but this documents
need to be
double checked and with relevant Bank authorities and .he also handed
over to Chief Justice at Constitutional Court,
on Thursday the 15th
September 2011 at 10h30. The Chief Justice must first sign them
before released to Mr N E Phetla on the 16th
September 2011 at 10h30
and closing of the matter will take place on the 20th September 2011
after MR Phetla has proved that he
is satisfied with all transactions
and also accepted delivery of two trucks of his address of record.
The trucks must be delivered
to Mr Phetla at Matlala Street, Duduza,
Nigel today, 16th September, at 15h30 and to return a proof of
delivery to Deputy Judge
President on the 19th of September 2011 at
11h30.
3.
It is further directed that Mr Phetla must still appear before the
panel of judges at Court C, Justice Palace as per application
by
Advocate Dikotla and that appearance must take place on the 19th
September at 10h30. The Bank proves(sic) given by Maartens
will be
handed over to Mr Phetla on the 16th September 2011 at 10h30 after
double checking.
4.
It is also directed by Chief Justice that the sheriff with effect
from the 15th of September 2011 be stripped of all powers over
the
accounts of Mr Phetla held at FNB.
(emphasis
added)
[13]
Paragraph 21 reads as follows:
"In
truth and actual fact, to the express knowledge of the respondent and
the sheriff, several arrangements were made for me
to withdraw the
funds from any FNB branch and to collect the keys of the M.N.A Truck
at a pound in Benoni, but without any success
and I have been offered
no explanation. To that effect I annexed thereto a copy of affidavit
by sheriff of the above Court Mr Maartens
for proof of final and
final (sic) transactions marked as annexure 'NEP10', the contents as
ad para 2 and 3 thereof are to be read
as specifically incorporated
to collaborate my submissions that the withdrawal of the funds,
handing over of the two trucks and
the closure of the file are
over-due and the persistent and deliberate locking or blocking of
funds and delay in handling over
the two trucks to me have no basis
at all".
[14]
Annexure "NEP10" referred to in paragraph 21 above is a
document titled 'Proof of removal and final transactions'
and it is
purportedly signed by the sheriff, Mr Maarten, and it reads:
"I,
the undersigned,
Mr
Maartens Sheriff of the North and South High Court Do hereby confirm
and declare under oath as follows:
1.
I am an adult male sheriff of the High Court, and have been duly
mandated to go seize and collect the truck M.A.N white, and
have it
taken to the owner, Mr. N E Phetla, at the address given to me. I
have also on the 26 August 2011 at 16h30 stopped the
financial
transaction, FNB Head Office, Simmmonds Street, Johannesburg.
2.
On the 29 August 2011 I went to Wesbank Ltd, at no. 1 Enterprise
Road, Fairland, Johannesburg, to collect the truck keys under
reference number: Nephe/3233, and I did not find Mrs Lazetheem who is
in possession of the key. I went there again today, 30 August
2011,
at 08h00 and have the key in my possession, the truck will be
delivered to Mr N E Phetla on Thursday 1 September 2011. I
am meeting
Mr N E Phetla on any FNB Branch as from 1 September 2011. I am
meeting Mr N E Phetla on the 1st of September 2011 at
08h30 to go
with him to the truck at Wesbank pound.
[15]
The contents of the annexures referred to above caused me grave
concern, as they appeared to be prima facie, fraudulent. Some
of them
were purportedly authorized by senior Judges of this court as well as
the Chief Justice. As a result of this concern, I
directed the
applicant to give oral evidence on the origin and nature of these
documents. The applicant testified that all the
documents in the
matter were authored by one advocate Dikotla. I also instructed the
sheriff of Johannesburg West, Mr GJ Maartens
to testify. In his
evidence Mr Maartens denied knowledge of annexures "NEP 6"
and "NEP 7", which were supposedly
signed by him. He denied
that the signatures appearing on those documents are his. He further
testified that his son is also a
deputy-sheriff of Johannesburg West.
I also called Mr Maartens junior, who likewise disavowed any
knowledge of the annexures. He
similarly denied the signatures
thereon as being his.
[16]
During the course of the hearing, counsel for the applicant handed me
further documents which only served to heighten my concerns.
One of
those documents is a purported order of this court, granted by my
colleague, Webster J, in the form of a draft order, which
reads:
"That
the Justice Department is authorized to collect all policy documents
and cheque in the amount of R16 350,000, (Sixteen
million three
hundred and fifty thousands rands only) and have it deposited in the
following Standard Bank Account.
Mr
N E PHETLA
ACCOUNT
NO: …....
SAVINGS
ACCOUNT
BRANCH
BOKSBURG
[17]
Another is a letter dated 3 June 2011 purportedly from the office of
the Judge President, purportedly signed by Mrs. Etsebeth,
the Judge
President's personal assistant. It is addressed to Advocate Dikotla,
in which the following is stated:
RE:
APPOINTMENT WITH JUDGE PRESIDENT NGOEPE
'Your
appointment with Judge President B M Ngoepe on behalf of Mr N E
Phetla is scheduled for Monday 06 June 2011 at 14h30 regarding
the
final payment of R16 350 000.000 and the closure of the file in the
North Gauteng High Court, before Judge President Ngoepe
or the Deputy
Judge President.'
[18]
Mr Sevenster, who appeared for the respondent, handed up an
electronic account profile, which showed that the applicant's account
number …...., which had allegedly been credited with an amount
of R31 389 000, had a credit of only R647.51 as at the date
of the
hearing of application. The other account is said to be non-existent.
[19]
No doubt the use of senior members of the judiciary in prima facie
fraudulent documents should be investigated. In light thereof,
I make
the following order:
1.
The application is struck off the roil with costs.
2.The
Registrar of this court is directed to cause a copy of this judgment,
as well as the transcribed record of the proceedings,
to be submitted
to:
2.1
the South African Police Service: Fraud Unit, for investigation into
the nature and origin of the annexures to the founding
affidavit;
2.2
the Chairperson of the Pretoria Society of Advocates to investigate
and consider the role of Advocate Dikotla in the matter.
TM
Makgoka
Judge
of the High Court